Trespass on neighbouring lands can occur in the building and construction projects in a number of different ways. Common examples of when and how trespass can arise include:

• Constructing permanent structures (which can be caused by error in construction or by surveyor’s errors);
• Erecting temporary structures (e.g. scaffolding);
• When transporting equipment or materials;
• Intrusions during constructions (e.g. swinging cranes);
• Excavation (e.g. inserting rock anchors underneath a neighbouring property);
• Storing or dumping materials.

Ask before you enter

Although it may seem obvious, if access to any part of a neighbouring premises is required, permission should be sought beforehand. Access should be obtained promptly and in writing such as by way of License Agreement or Deed of Access.

These documents can be used where the parties are in agreeance as to the terms of access. Such Deed or Licenses can cover issues such as the type and extent of the access; duration of access; compensation (momentary sum in consideration for access); insurances and indemnities; neighbours rights; termination and suspension.

Consideration should also be given to the parties to an agreement – it is desirable to bind the owners of the prospective property, the tenant (if any) as well as the builder or developer.

What happens when access is not consented to or further protection is sought?

An application to the Court for necessary Orders is required. See Part 3 of this article as to what application should be made and in what Court.

Agreement v Statutory Easements

Statutory easements can be more expensive than a mere agreement between the parties. Associated costs which will typically include the costs of lodging the application and compensating the neighbouring landowner for the diminished value of the land for the easement recorded on title. The costs of removing the easement from title at a later date can also be substantial.

Notwithstanding, the potential expense should be weighed against the benefits of a statutory easement. This will include the extra degree of certainly attached to an easement.

It is important to note that Deed of Access or License Agreement will not “run with the land”. In other words, if the property is sold, then a Deed or License will need to be assigned or novated accordingly.

For many developers, an easement will be the preferred option.